Transcripts For CSPAN3 Landmark Cases Supreme Court Landmark Case Katz V. United States 20240712

Cspan3. All persons having persons before the honorable, Supreme Court of the United States who admonish to draw near and give their attention. Landmark cases, cspan special history series produced in partnership with the National Constitution center exploring the human stories and constitutional dramas behind 12 historic Supreme Court decisions. Mr. Chief justice may it please the court. Quite often in many of the most famous decisions are ones that the court took that were quite unpopular. Lets go through a few cases that illustrate very dramatically and visually what it means to live in a society of different people who help stick together because they believe in a rule of law. Good evening and welcome to cspan landmark cases. Tonights case is katz versus the United States, it is a 1967 case and the person who gave his name to the case is somewhat of an unlikely hero. He was a bookmaker specializing in College Basketball games and he took his wiretapping case to the Supreme Court and in a 71 decision expanded our privacy rights under the constitution. Were going to learn more about his story and the significance of this case over the next 90 minutes. But well begin by listening to judge Justice Samuel alito in his confirmation hearings where he talked about the importance of the katz case. Lets listen. Sometimes changes in the situation in the real world could call for the overruling of a precedent. An example of that is provided by katz versus United States which i was talking about this morning in relation to wiretapping. The old rule under homestead was that in order for there to be a search, you had to look to property law, you are had to see whether there was invasion of a property interest. And then with the development of Electronic Communications and electronic surveillance, wiretapping or other forms of electronic surveillance, which is what was involved in katz, the Supreme Court said this isnt a sensible way to apply the 14th amendment under the conditions of the modern world and they said famously that the Fourth Amendment protects people not places. So they shifted and found the doctrine underpinnings of the Old Homestead rule to be undermined by developments in the society and shifted the focus from property law to whether somebody had an expectation of privacy. So our two guests at the table are going to unpack that story for us tonight. Jeffy rose ebb is the president and of the National Constitution center. The Constitution Center are our partners in this land mark case series this time and the first round in 2015, he is also the author of numerous books about the law and the court. His latest is a biography of William Howard taft that has just been released. So great to be here. Jamil javer is director of the National Security law and policy program at George Mason University Antonin Scalia law center and clerked for neil gorsuch twice and former adviser to the senate house and Intelligence Committee and president george w. Bush and thanks for being here tonight. Thanks for having me. So as we begin, jeffrey rosen, we worked on selecting this case and why is this case interesting to you. It is the most important privacy case of the 20th century as Justice Alito said. This is the case that repudiated the idea that you needed to have a physical trespass to trigger the Fourth Amendment. This is the general warrants and writs of assistance that sparked the American Revolution but in the age of Electronic Technology it made no sense to say that you had to trespass on Property Private in order to have an unreasonable search of our persons or electronic effects and by declaring that the law protects people not places, the court set the stage for moving the Fourth Amendment into the electronic age and that is precisely the debate that were having today. You have spent much of your recent career focusing on National Security law. Where does katz fit in that. It is the central case as jeffrey just laid out about how we think about the Fourth Amendment and surveillance. And one of the key issues in National Security law today is surveillance and how the government conducts surveillance. It is a topic of much debate, after edward snowden, and there continue to be debates today at the court this term are two major cases involving well one involving electronic surveillance and two involving the Fourth Amendment so it continues to be a hotlydebated topic at the court and in our political system. We need to spend some time on the Fourth Amendment itself so im going to put the language on the screen. The right of people to be secure in their persons, houses, papers and effects against run reasonable searched and seizures shall not be violated and no warrant shall be issued but upon probable cause and supporting the oath or affirmation and and so a bit of a history liston and what gave rise to this amendment. Chief Justice Roberts quoted the speech of jame otis denouncing the writ of assistance and john adams said at that moment the child revolution was born. So that is how important this historical story is and the writ of assistance allowed the kings agents to break into peoples homes, searching for evidence of the fact that they hadnt paid the hated tea taxes you or criticized the king and the warrants didnt specify the places but just said go find the authors of these pamphlets or people that didnt find their taxes so they were instruments of tyranny to allow them to rummage indiscriminately and common law courts established the principles in state constitutions, the massachusetts constitution of 1780 has a longer version of the Fourth Amendment and when James Madison drafted the Fourth Amendment he cut and pasted from those state constitutions to make clear that you couldnt have searches that dont particularly specify places to be searched and a person or things to be seized. You teach the Fourth Amendment. What do you tell the students about the importance . I think it is at the core of our civil liberties. It protects as jeffrey said against the general warrants and the tyranny of the king. Remember, our framers came from a place of deep suspicion of overleaning federal or governmental power. So when they built our system of governance they built a government of limited powers and laid out the rights people were entitled to and one of the core right was the right to be protected against unreasonable search and seizures. Well get to your call and tweets in about 10, 15 minutes. 20274889 hundred and then in the Mountain Time frame, and send us a tweet it is cspan. Org and there is a discussion already underway on our facebook page. Can you be part of that now or after our program is over if youd like. So as we get into the particulars of this case, there are a couple of personalities that people will hear about as we proceed. One is charles katz himself. What could you tell us about charles katz . A constant gambler and a leading basketball handicapper in the United States. He had residences in new york and los angeles at the time of his arrest. He was living in a hotel on the 8200 block of the famous sunset strip famous for rock bands and all sorts of things and he used to stroll down the street to a set of three phone booths in order to conduct his interstate gambling mission. The fbi got wind of this and that is what led to this case, was the wiretapping or the surveillance of the phone booths. Someone sent me a tweet last week that said we have to explain what phone booths were. Harvey snyder, who is he. Hes now a retired Los Angeles Superior Court judge and a law clerk to burton marks and he made a great filing in this case when he filed the brief, he said thanks to a typo, a man has as much a right to bet alone in a public phone booth as in his own home. So snyder took over the case from marks and it was snyder who came up with the brilliant theory of the core of the case that rather than focusing on what is a constitutionally protected place, the question should be barring from tort law, do people have reasonable expectations of privacy. He remembered his own Law School Class where he studied the views of the reasonable man and made that argument before the Supreme Court and it ended up defining the case. So that much make both of you feel good about the importance of individual classes an the impact they have on your students overall. This is one class that sparked a brainstorm for this lawyer approaches the case. Absolutely. And this is the most exciting sort of case to teach in criminal procedure because it does inspire people to transform and to translate in light of new technology. That is what Harvey Snyder did and what louie brand ice and what cspan viewers should try to do tonight. An important character in this. Tell us about him. Justice Supreme Court appointed by president eisenhower served in world ii as a member of the navy reserves. Often times found himself in dissent during the warren court era. But in this case, in the majority, writing perhaps a slightly narrower opinion than what katz is known for. Katz is really known for justice har lens concurrence. So they have the majority and the votes but ultimately the really influential was the concurrence. Youve referred to him and liz brand ice is important in this case. Why. He wrote the most important privacy dissent of the 20th krnts and i want viewers to go and read it and you could get it online right now. But keep watching the show so read it after the show is over. And brand ice is i love taft and write about him in the book but chief justice taft said you need a physical trespass and that was a case involving wiretapping and a bootlegger of his time and there the wiretap was under a sidewalk. Brantice looks forward to cyberspace and technology and said ways may some way be developed by which it is possible without intruding to extract secret papers and ins deuce them in court and the right to be let alone and the amendment to be translated to protect the privacy in the age of wires as the framers took for granted in the 18th and 19th centuries. Were in the era of the time when oral arguments are being recorded by the court and to give you the particulars of this case, were going to listen, we mentioned earlier, that the lawyer in the case was Harvey Snyder and were going to listen to him in the oral argument as he tees up the particulars and the facts in the case for the justices and help us understand the story that brings us to the Supreme Court. Lets listen. Mr. Chief justice and may it please the court. The facts of this case that is now before the court are really quite simple. The law applicable is Something Else again. But the facts are as followed. Mr. Katz was surveilled by agents of the federal bureau of investigation for a period of approximately six days. During that period of time, the surveillance was conducted by the use of a microphone being taped on top of a public telephone booth, there was actually three booths. One had been placed out of order by the Telephone Company and with the Telephone Company cooperation and the other two booths were used by mr. Katz, sometimes one and sometimes another. The tape was placed on top of the booth or the microphone was placed on top by a tape. The fbi agents had read their homework and had not physically penetrated into the area of the telephone booth. Subsequently after about six days of surveillance, mr. Katz was arrested. We have a period picture of the telephone booths on sunset boulevard that were really a character in this case. So could you explain the authority under which the fbi agents were operating at the time. Sure. So the fbi agents, their understanding was that as jeff laid out that if as long as you didnt invade the physical space and constitutionally protected space, a home, or the like, there wasnt a problem. So they didnt bother to go get a warrant. They knew they had been watching mr. Katz for a while. They knew it was his normal order of business to leave his hotel, walk down the street, take a stroll and enter the phone booth, make his bets in a phone booth or take the bets and wonder off. So they put this microphone on top of the booth without invading them and they set the microphones up to record what was happening inside of the phone booth and as mr. Katz would walk down and an agent would follow him and send the hi sign and mr. Katz would do his thing and so the authority essentially was they werent violating Supreme Court decisions and penetrating a constitutionally proven place and they dont need a warren and they taped it and that is how we ended up in court. What law was he breaking. Was betting illegal . What attracted the fbis interest in the first place. There are statutes involving Money Laundering and also ones betting and im trying to get the exact one here. Here it is. Thanks to the great National Constitution center prep team. It is 18 usc 1804, wagering information by telephone and forbidding betting or wagering knowing a wire communication for interstate or foreign commerce and bets or wagers. So he was probably violating the law but the question is whether the search as jamil explained it was constitutional and if wasnt, according to existing case law, the evidence had to be excluded so everything was on the search. So what was illegal about it was that it was interstate. Right. If he had been making a local phone call it would not have been if the gambling was local it wouldnt have used the interstate wires and that is how we ended up in federal court in the Southern District of california now the central district. That is how it wound from that court up to the ninth circuit and then to the u. S. Supreme court. You know the famous line in the case that he said on the phone that was the hallmark of his betting. So you wanlt to tell the audiene what it was. He would take duquesne minus 7 for a nickel and the question was, was this a bet. And anybody who has ever gone to vegas and placed a bet on sports knows that the Basketball Team was favored and he was betting 500. Do we know if duquesne won. I dont know. Lets find out. Viewers, figure it out. But he was taking tons of bets on this line and calling all of his acquaintances and the people that gambled with him and the people he places his bets with. Because he was a bookmaker. So he was placing bets and placing them sort of them engage in the process. So he was literally the biggest basketball handicapper of his time. And go ahead. It is striking. Homestead was the biggest bootlegger of his time so these are not small potato guys and in both cases the feds didnt take the time to get warrants because these guys were under serious enough suspicion they might have done so but they didnt and they gave rise to landmark cases. A time line of the events leading up to the case and i want to walk through it so you could see how the events proceeds. The fbi started bugging the phone booths back in february of 1965 on sunset boulevard. And just a short time later, february 25th, 1965, mr. Katz was arrested on eight counts of illegally transmitting bets. On may 30th of 1965 he was convicted and fined 300. That seems small for eight counts. On november 17th, 1966, ninth Circuit Court of appeals upholds the conviction. And march 13th, 1967, the Supreme Court decides it is going to hear the case. So eight counts is a lot. If you had a client facing eight federal counts, what would you say about how serious this was for him. Well, look, they had him dead to right. They had him on the recorder getting on the phone making the phone calls. So his lawyers didnt have a great he didnt do it. And they have the famous duquesne minus 7 line and there wasnt a good argument that he wasnten gamging in gambling so they had to come up with a theory of why the evidence could be introduced and the theory was that people have an expectation of privacy, when he went into the phone booth and close the door he was either creating a space for himself or had the expectation that the government couldnt surveil without a warrant and having done so, that they couldnt use that evidence against him without a warrant. So why would the ninth circuit have upheld his conviction. What was their legal reasoning. It was clearly legal. The homestead case said you need physical trespass to trigger the Fourth Amendment and they put the wiretaps under a public sidewalk leading up to homesteads office and here it was a public phone booth in which katz had no property interest. There was a separate Juris Prudence about constitutionally protected spaces but those were defined by Property Rights like the home. So they with were applying law and the willingness to embrace that leap by the Supreme Court in order to strike down the search. Will you explain the process of getting from the ninth circuit to the Supreme Court. Yes. So once they get the decision from the ninth circuit they had a chance to apply for a writ of certiori by the Supreme Court, they take a small percentage of all of the cases. It takes cases of National Importance or a split between the circuits on disagreement among the lower courts. In this case, the law was fairly clear, right, as jeff laid out, the law coming from homestead was clear. You had to have a physical penetration. The law from goldman, another important case was clear that you could use a device placed on the outside of a in that case it was a detect a phone, a large ear that you could place up against the wall and hear through the wall and they have done this on top of the phone booth and so the law was clear and as far as i recall there was not a circuit split on this question. And so this is a case the Supreme Court is taking in part because there was this deep concern about the modern era and the evolution of communications and the concern that it is law at the time did not address the issues effectively. What about the cooperation of the phone company. Was that a given at that time . Well, this was an era, in the 1960s, where at least for the longest period the phone company was cooperative and in this case without a said could you please put one booth out of order so we could place the recorder on top of each phone and with a recorder and if they had three booths it would have been harder to set up so the Telephone Company was cooperative enough to do that. Now they didnt go to the phone company and ask to put a wiretap on it. And i guess i am not sure why, maybe they were concerned about but given homestead. I dont think it would have been a problem. The burger case in 68 gave instructions to congress which responded so the the federal may have been uncertain and that is why the phone company went along. But they were not the apple of the day. They didnt refuse to cooperate. That is right. And do we know anything about the britain Marks Law Firm and how what kind of cases they took on. Did he hire high priced representation. Well marks was a famous defender of the accused. And so he was known for being a fierce advocate but the interesting part is the role that his law partner plays in this case in developing this theory and the arguments that he made and actually his deafness on his feet before the court really brought the court around. I mean, the case was ultimately 71, right. Justice marshall did not participate. But only one dissenter. So he was able to convince Seven Members of the court to go along with a complete change and overruling of precedent. And there was a split behind the scenes and it was sort of either 54 or 44 and Potter Stewart changed his mind in light of the argument and that brought along other justices leaving only justice black in dissent. Unusual to see the split because of the creative arguments for Harvey Snyder. Well next were going to meet him. How about that and by videotape. Weve mentioned there is really very little known about charles katz and one of the ideas behind the series is to tell the peoples stories and we know about the particulars of this case but really not a whole lot about him. And next youre going to hear from Harvey Snyder talking a bit about charles katz and then also our producer for this series nathan hurst on his efforts to find out more. One thing we know about charles katz, he paid his legal bills in cash. But well learn more in this next clip. By the time we were heading back to washington, charlie katz was which means he would no longer afford to pay fees. But who cares when you get a case before the Supreme Court. You dont worry about whether your client can pay fees. What is so interesting is this is a man who had eight fell counts and clearly had a profile with fib however we cannot find a photograph of the man. He was never published in any newspaper or news wire or nothing like that. There is no video of him. Even while his case was being adjudicated he never showed up to court other than to be arraigned. In todays age it is pretty hard for people to disappear that completely. Does it surprise you that there is so little, not even a booking photograph. It is surprising. You just think about the modern era. And a lot of this case really relates to the modern era and are smartphone protected and the photographs in your phone protected to government surveillance without a warrant or under a warrant what circumstances and how i might get it. And it is amazing that through all of this discussion, cant find a photo of the guy. Were going to move to the Supreme Court learning about the makeup of the court and the arguments in a few minutes but it is time for your phone calls. Lets begin with roger in decatur, georgia, welcome. Caller good evening. So if you want to see a phone boo booth you could go to Scott Pruitts office. So like katz said that the Fourth Amendment protects people not places but the standard is sort of squishy because you have to decide what kind of interests are protected by privacy. And so Justice Scalia in the heat sensor case said oh, but it also protects property. Okay. So you cant go and look through the house for the heat sensor. But outside of that, there is really maybe the keenl case about needing a warrant for wiretaps there is not much that said what is protected by privacy and on the other hand we have these big holes like the pen register cases that say that metadata could be captured, okay, and also like anything that touches a foreign border could be captured or it is been allowed to be captured. So, it seems like the Supreme Court is not really keeping up with all of the advances, you know. We have these devices that are to cell towers to pick up cell conversations and police men are scanning conversations when they go through neighborhoods and stuff like and there is no protection against that. Is there any chance i mean this Supreme Court is taking little tiny steps in technology areas. Any chance it will get a solution to those kind of problems from this court . Great question. On the one hand this court is inspiring in coming up with unanimous decisions repeatedly saying that you do need warrants before you could track someone 24 7 with a gps device. Or search someones cell phone. This year they will decide whether you could have five month surveillance of cell phones. But the word you used was squishy and youre right. The standard in katz, which well talk more about later, said you have to have an expectation of privacy that society is expected to project as reasonable is squishy because the expectation of privacy is privacy that they experience as surveillance becomes more ubiquitous and our constitutional protects goes down and it is a great advance about t was squishy and the court is dealing with that squishiness, as you say, today. At this point in just in recent terms, the court cited a case about whether cell phones could be surveilled or searched without a warrant as part of a search incident to an arrest and decided no. And now this term, as jeff pointed out, the court has a case before it about gps surveillance and longterm well cell phone locational data surveillance. So the court is having to deal with the questions and, you know, there is the famous concurrence by Justice Sotomayor in the jones case where she laid out there are huge issues coming up with modern technology and the court is going to have to grapple with them and i think in this very term well see them gr grapple with these cases. Caller did the movement have any political legs at all . That is an excellent question. I think the exclusionary rule case map was very controversial. It is a series of criminal procedure cases in the 1960s, including the escobido case and you remember strong thurman in the Supreme Court hearings of earl fortis to replace chief Justice Warren saying escobido, because he was supposedly freed. So the warren court was defined by the cases seen as being soft on crime, i guess you could view katz as one of the cases and some of them gave rise to the impeach earl warren billboards which were so famous back then. Fred is in laguna niguel, california. Hello, fred. Caller thank you for cspan giving me the opportunity to talk. I was listen to the case of the phone booth in sunset boulevard and i have a general observation on all of these cases regarding Fourth Amendment and that is my amazement of how and why you should take the lower courts to recognize the right of the people to be safe in their persons and their papers and everything else. And it doesnt take a genius to recognize that you dont event have to do a lot of research and going from one court to another court to find out that the new technology which provides information kept on cell phones and other kind of Electronic Systems also goes under the Fourth Amendment. Its just while im enjoying the professors discussions but i think we should have much more much more enthusiasm about going back to the right of the people and why should it take the court to figure out if something applies or not. Because isnt it in the constitution that even if you cant decide whether this amendment applies or not, the rest of the right of the people stay with the people. Why the courts take so long. I like to hear your enthusiasm and frustration that i have. Thank you very much. Jamil. Well as the caller points out, there is an amendment in the bill of rights that said that all of the rights are not given to the federal government are reserves to the people and to the states and the people. And largely that hasnt been hasnt been interpreted very much and hasnt been utilized. In part because there is very little detail behind it and the court had a hard type grappling with what that amendment means. That being said, the Fourth Amendment doctrine has changed over time. As jeff pointed out, this case was a landmark case because it changed the doctrine that would have been in place for 40 years. And since then katz has been the controlling precedent that dictated how we think about surveillance and has for the last, you know, 40 some off years. But there is an interesting shift. Just recently the court has made a move back towards a propertybased view of at least some surveillance cases an revitalized homestead and goldman even though the underlying principle going back to the text of the amendment and so the question now becomes what do you do with the cases as we go forward in the modern era because the reality is it could have very real applications and you saw arguments in carpenter, gorsuch talking about the way Property Rights might apply to Fourth Amendment. That is such an interesting observation and it was so fascinating as you suggest to see at the carpenter oral arguments two different but supporting positions. On the one hand Justice Gorsuch as you said resurrecting this property based approach and cell phone reports because of the contracts with the Cell Phone Companies but on the other hand Justice Sotomayor said that it makes no sense to say that data surrendered to a third party is one in which we have no expectation of privacy was focused on our privacy expectations and the fact that 24 7 surveillance could reveal so much about us that we should channel justice brand ice so two justices from different perspectives coming to the same result by bringing together, both of which come to a head there katz which is why it is so exciting. Michael is up next in jam jameston, north carolina. Caller hello. Youre on. Welcome. Caller my question is about how the katz case was used as a precedent in the 1979 smith v. Maryland case which did so much to expand the electronic surveillance. Thank you. It is great that you mentioned smith v. Maryland. That is the core of what is called the Third Party Doctrine. Which sounds wonky but is the key of what Justice Sotomayor was talking about in her concurrence. When i surrender data to a third party like a phone Company Third base i lose expectation of privacy and the phone company is allowed or could be required to turn it over to the government. Katz was the core of that case because katz held that we only have protection and data on which we have reasonable expectation of privacy and smith lost expectation of privacy in it. Even at the time smith was controversial and it involved bank records, rather involved telephone records, pen registers, but congress overturned a series of third party cases saying it is not true that when i turn over financial records to a bank i have no expectation of privacy and Justice Sotomayor notes when all of our things are in the digit cloud, is smith v. Maryland is taken seriously marines we have no privacy today. That is why it is so important and the katz underpinning is so crucial and interesting to see what the court does in the carpenter case. And jeff is right. And it led to the stuff weve talked about post after the snowden disclosure and the discussion of the governments metadata program. The reason the government was able to obtain large amounts of cell phone and email records was because the court and smith said there is no reasonable expectation of privacy in this routing information, this dialing information, signaling information given to a third party and the phone records and the email records your Internet Service provider as a result weve had huge programs of surveillance that the government has done without warrants under some authority, right, in that case the 215 authority, and the patriot act. And then in other cases the trap and trace statute. But ultimately led to congress changing the law in the usa freedom act and led the continued debates about whether this Third Party Doctrine is viable and Justice Sotomayor concurrence laid out the case why it is not viable. In that case they came together to decide the case in favor of mr. Jones who was a suspected drug dealer here in the washington, d. C. Area. But ultimately this is the continuing debate that is taking place again here in carpenter and well see some resolution of it from the court by the end of the term. So lets return to 1967 and the court. That gave us this decision. By virtue of our callers question we know about earl warren but lets take a look at makeup of the court. The eisenhower appointees still serving on the court at that point, earl warren, John Marshall harlan ii, William Brennan and Potter Stewart. Roosevelt appointees, hugo black and william o. Douglas. The kennedy appointee byron white and johnson appointee abe thirst ton and Thurgood Marshall and marshall did not participate in this decision. Explain why please. It was appointed around the time. So maybe you could talk generally about the solicitor jen general and the conflict of interest they may have. The solicitor is the practitioner for the government before the Supreme Court. He or she is the lead appellate lawyer for the government typically. It is their office that argues the cases before the courts, occasionally they argue before the courts aftof appeals in cas of high importance to the government. And in this case, his role previously to serving as u. S. General, he could have been that the case was up for a consideration during the petition for certiori and they weighed in on behalf of the United States, arguing that the case should not be granted. Wanting to have upheld the decision of the ninth circuit upholding the conviction of mr. Katz. They were unsuccessful and it came to the court and my guess is that is why he didnt participate. You spoke about the warren court legacy in the areas of crim rights. You could talk about the makeup of the court and some of the alliances that had been forming over the years that the warren court was around. The core of the warren court was the alliance between earl warren and William Brennan, who was warrens deputy and helped coral majorities. Other liberal was Thurgood Marshall. And Potter Stewart was a centrist who likes to write narrowly and could go either way. Justice John Marshall harlan who wrote the concurring opinion in katz was on the conservative wing and he had dissented from several of the criminal procedure cases as well as the Voting Rights cases. And then there was hugo black who, this lone dissenter in katz and black was a liberal texturalist appointed by roosevelt. He went to sleep every night reading the constitution and burned a hole in his pillow buzz he would stay up communing with the original text and he believed that no law meant no law on the First Amendment and he was a great civil libertarian and he couldnt make up rights that werent in the constitution and he dissented. Do you have more to say about that . I think he thought so because, of course, the text of the amendment doesnt mention it. It talks about persons and house and papers and effects. And so black was struggling with this. I might even want to consider but it is just not there. And he was focused on an absolutist and very much focused on the text of the constitution, couldnt bring himself to find an expansive definition in there and so i think that was part of what was at the heart of his dissent in this case. In granting the writ of certiori and deciding to hear the case, weve learned in the past that the justices may have been looking for an excuse to revisit a certain part of law. Was that the case here. Why did they take on the katz case in the first place. There is struggling with the question of wiretapping, trying to translate the amendment in light of the new technologies. And i think there is an understanding that focusing on constitutionally protected places was not adequate at a time when you could invade the places virtually rather than actually. But they havent come up with a solution and that is why the questions to the lawyers said was it a constitutionally protected place and Justice Stewart said this is the we asked, that is the wrong question. The real question is the Fourth Amendment protected people not places. So you could see him acknowledging that the courts mind had been changed by the argument itself. So mr. Katzs lawyer Harvey Snyder was up against a great deal of legal precedent before the justices to make his argument. He was also an attorney without very much experience. He was only a few years out of law school. In our next clip were going to hear from him today talking about his epiphany as he thought about the arguments woe make in this case, which differed from the arguments that they have set out in the writ of certiori in the first place. Well learn more about that from him and listen to a bit of the oral argument. Im sitting in my office one day, and im ruminating about katz, probably ruminated about little else during that period of time and i thought back to my time in law school and in particular my course in torts and we were taught with regard to the tort of negligence, that negligence was doing something a reasonable man would not do or failing to do what a reasonable man would do. We call them tarm, the average reasonable man. And it occurred we had it wrong and the court had it wrong. The inquiry not be whether there was physical penetration or whether there was a constitutional protected area and the inquiry was whether the persons conversation was intercepted had a reasonable expectation of privacy. And when we got to the court in october, i violated a very significant rule of the court. Because youre not supposed to raise in oral argument anything that you did not brief. Well i never briefed a reasonable expectation of privacy because i hadnt thought of it. They were really kind to me. They were listening and not interrupting because i was proposing to them a test and a solution to a problem that affected them for decades. The constitutional protection would not apply, i think is the way to phrase it. I indicated this morning that we think that the right to privacy, which is the Fourth Amendments concern as i understand it, follows the individual. And we would base our contention upon this by reading or little reading of the Fourth Amendment. I respectfully call the courts attention that the Fourth Amendment, after paraphrasing but it said people have a right to be, quote, secure in their persons. That is the very first item of protection that is contained in the First Amendment. It says persons, then it says houses and then personal effects and one other item. But it is significant to note, i think, that the very first item of protection in the Fourth Amendment is persons. And we would contend that this fact alone lends credence to our view that privacy does follow the individual. So there is so much i want to ask both of you about that. Here we have a person who has never argued before the Supreme Court before. And you heard how he approached this. And really kind of turned the thinking on its head. What is your reaction . My reaction is that this is amazing. It doesnt happen much, that the court changes its mind at oral argument or the vote behind the scenes changes and it almost never happens that a fundamental transformation and constitutional doctrine happens on the fly because a single lawyer has a flash of inspiration and argues it before the court and they listen respectfully and embrace his suggestion. I hadnt known before learning from landmark cases and seeing Harvey Snyders interview how pivotal he had been and just in realtime to see the oral argument, he said when Justice White asked me a question that seems to suggest he was focusing on a subjective test i responded, no, the question is it is an objective test of whether a third party would arrive at that conclusion. Youre seeing constitutional law being made in realtime. It is unusual and it is important and it transformed the law of the Fourth Amendment. So thank you susan for having created this to teach us this really significant change. And what is amazing about it is that when you look at the text of the Fourth Amendment, that conclusion is not obvious, right. Potentially more obvious explanation was what the court adopted was that persons, houses, papers and effects were all to be read of a piece and the persons was the person of the body being seized or physically searched, not that persons meant the right travel with that person no matter where they were otherwise if that were the case then why list houses. They would be surplusage. But somehow the most natural reading is not that reading and yet in that moment, in that oral argument he was able to convince a substantial majority of the court that he was exactly right and that is an amazing example of why it is so important. In the modern era we have a lot of people that they rate how often justices ask questions and try to read the tea leaves about what is happening in oral argument. But the truth is, those matter a lot because the justices prepare and read the case and the briefs and when they come in with questions theyre trying to figure out what where are the weak spots of the argument and what does it mean going forward. And so this meant that the oral arguments do matter and this is a great example of why they matter. But he said, Harvey Snyder, said that the justices listened and they did not he said is the listened and did not interrupt. Today people count the number of interruptions. Ive heard that the the chief justice is trying to figure out how to get counsel to what do you think is going on here as a dynamic . Is the cord different or are they just so interested in this argument . I think its a bit of both. I think in the modern era, you see the justices with a lot more era at that disposal. Theyre much more prepared with the entirety of, i think, the body of so theyre ready to come in firing. I have my eight questions, i want to figure out whats going on and to get the ball moving. I think youve seen that not just in the Supreme Court, but in the lower courts. So well see if that trends continue continues at the country becomes more polarized, theyre asking questions to each other, trying to persuade each other and that i own case, which leads less opportunity for openminded listens, and yet as you suggest, it does happen. In the carpenter case, it was so interesting that Justice Gorsuchs questions about Property Rights seemed to be reflecting some recent interventions, including by professor will blaugh, that had written blog entries that seemed in real time to be introduced in courtrooms. I think youll see they talking through counsel. That contributes to the lots of conversation going on during oral argument. Lets listen to the argument the government was making in katz, made by john s. Martin jr. A solicitor to the u. S. Solicitor general. The reason is Thurgood Marshall was being nominated to the court, so there was a turnover in the solicitor generals office. A party in a public home has no right to expect hes going to be accorded protections he would be in a private house. We submit what was done here was not an indiscriminate search and seizure such as condemned by this court in irvine. In this case innocent members of the public were not subject to surveillance. The agents testified that the tape recorder involved was a stereotype, had two tracks, a and b, they could control which conversations they would listen to, and they did not in fact listen to the conversation of the innocent party. Say this was a reasonable search of a what . One of of about reasonable searches until rule 21 is you cant search for mere evidence. Do you think the words over the was instrumentality. The crime is to transport wagering information or wagers over the interstate. Would you decode how effectively the solicitor general was answering . The hard question is, can you search or seize intangible things . We typically think of the Fourth Amendment, or at least at that point think of the Fourth Amendment protecting these plac places. Then the question is if theyre seized, what is the privacy right, and that was the conversation between the lawyer and Justice White. Interestingly Justice White was the justice that Justice Gorsuch clerked for. So its byron white, byron wizard white was a big football player, and justice gore suv sat in the byron White Justice center in colorado there was a rule in place designed to protect private diaries, you couldnt search my private diary december you should search contraband, because it wasnt considered property and forfeited to the state. The mere evidence rule was overturned soon after katz, and reducing the protection for private diaries, but the court is struggling with john martin whether you have a property interest or not. John martin was later appointed as a district judge, but thats why the government is saying theres no property interests in this phone booth. Next up is tony in brooklyn. Youre on the air. Welcome. Caller good evening. Admittedly i dont know a lot about law, but my question is about the patriot act and how it affects the United States and the Fourth Amendment in general . Could you explain the patriot act . Its a change in the law immediately enacted after 9 11 that gave more authority to conduct surveillance. The most relevant part to this conversation is what was known as section 215 of the patriot act. That modified an existing law about Business Records. What it did is changed that law to be about specific sets of Business Records and how the government could obtained them to expand that to essential anything that was covered by a typical subpoena. Now, the reason its relevant in katz, relevant here, as we talked about earlier, a followon case determined that phone records, the dialing of a phone call, is not covered by the Fourth Amendment, because there is no reasonable expectation of privacy. Under the katz rule, its information you give to a third party. It was most famously utilized to obtain substantially all of the phone calls that took place with here in the United States in the post9 11 era under a program, we know as stellar wind program, and laterened the patriot act. The relevance is the megadata, and its ultimately being discussed, so very much a live issue. James in greenfield, massachusetts, hi. Hi, paul, youre on the air. Go ahead, please. It sounds like were having problems with our phones, so well come back to that in a couple minutes. Were moving onto the decision. It came down on 1967, a 71 decision in favor of katz. Heres how it lined up. The chief justice, of course, and then a majority opinion written by Potter Stewart. Joined by william douglas, john harlan, William Brennan, white, and fortas. Three concurrences were in the case. Here is a bit of the excerpt from the majority one it is recognized that the Fourth Amendment protects people and not simply areas against unreasonable searches and seeries, it becomes clear that the reach of that amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure. Explain how we have three concurrences in this, and how people decided to join in the majority opinion. Yes, this back story is an account by peter wynn, and there was an initial split after the oral argue 4 to 4 along the same lines as the certiori vote. So a shout out to professor tribe for this important role. Justice stewart was influenced by the wiretap act being debated in congress, and influenced by the burger case. That left justice black as the sole dissenter. Were going to try paul again. Are you there . Caller yes, can you hear me . Yes, sir, we did. Go ahead, police. Caller thanks. This is a great series. I appreciate it. Three years after katz in 1970, i was a graduate counselor at kent state, and the Police Budget was increased from 100,000 to a million a year. We were told that one of the deviced they had implemented was a laser beam the police could use from their cruisers to listen to student conversations. Would katz have applied to that . Suppose i was accused of fomenting revolution, would katz have protected me . Yes, because we do have an expectation their our private conversations are not being picked up by cuttingedge technologies. Justice scalia said if cuttingedge technology is used to, in that case, invade the privacy of the home, then a warrant was pruesumptively required, and the jones case even said outside the home, you might have an expectation of privacy. In the end, the government is limited to report our conversations in public by state and federal laws, but the expect of privacy test i think would have protected you james, welcome. Caller what i wanted to say is Justice Stewart delivered the opinion at court. He took issue with the way the petitioner formulated the question, which included whether the phone booth is a constitutionally protected area, and b, whether physical penetration of a constitutionally protected area is necessary before a search and seizure can be said to be violation of the Fourth Amendment to the United States constitution. He added a couple words in there. One was the right to privacy anyway, thats what i had to add to that. Thank you. The court was very careful to say, look, were not opining on the general right to privacy. Were specifically talking about a phone booth, if he closes a door and creates a space. So while its true that the Fourth Amendment protects people, not places, they were careful to say were not laying out a general right of privacy, the right to be left alone that brandeis talked about, was actually protected in the first instances by state, just like the life and liberty of a person. So the stewart opinion was very narrow. Its important to also remember that it was almost cited exclusively for the harlan concurrence, which is the reasonable expectation of privacy, and a subject of compone component, i believe i have a expectation of privacy in this space and the general co. Uponant that society is willing to september that you have a reasonable expectation of privacy. The harlan opinion is the one that matters. While stewart wrote an interesting crafted opinion, it you willy didnt matter. Heres a best of a text of the harlan opinion so why is this so important . Because as jamil, it says it gives us a test. Lawyers love that. You have to have a subject that society has an expectation, except that it wasnt. On the one hasnt, who knows what one as subject i have opinion is. In katz, the guy closed the booth behind him, but people may have different expectations. More significantly, the Court Warriors never systematic about what expectations are actually reasonable. Theres a fascinating study by professor slobogan, and he learned there was no correlation between what the students expected, and the kind of interests that the court has protected. Theres a kind of lets make it up quality to the application of the harlan test. Furthermore, its circular, for the reasons we have discussed, because its possible for the government to lower or expectations. Justice harlan himself seemed to have second thoughts about the test. In the white case, he xwrated a more i guess the fancy wort is saying how much privacy should people in a free society be entitled to demand. That was a far more rho best test. So heres a brief excerpt from justice blacks dissent im thinking about the hole in the pillow you may remember, for the text of the constitution. Is there anything long lasting dissent. He was fighting a noble battle. Though he was a liberal originalist and texualist, the current originalists disagree. There was a Great Exchange between Justice Scalia and Justice Alito in the jps case. Alito said there were no gps advices, scalia said theres a tine no constable hiding, and lito says you knee 1,000 constable to get the coverage of gps. So here you have these two conservative justices, one an originalist, the other not, agreeing that the Fourth Amendment applied, but not for the same reason. Justice black at the end of his career was being very ridge i had. He didnt see the conversations as digital effects, and wrote noble, but not in the end a very influential dissent. From at the 19th, 1967, the Los Angeles Times headline Supreme Court rules bugging is subject to legal safeguards. In the New York Times high court eases curbs on bugging, adds safeguard, insists police just obtain warrant. We now look at it as a landmark case. How significant was it seen in society back then. I think it was a big deal. At that point, you know, these devices were just coming into vogue. It was a new erace of electronic surveillance. They had been around for a while, but this was an important way the government was collecting evidence. It is the principal way in which the government is able to bot obtain criminal evidence, and National Security evidence. And intelligence and terrorists, operatives and the like, and apparently famously, you know, government officials or campaign officials, as we learned in the last few months and years. Its generated a tremendous amount of debate within both the executive and legislative branches in the last few months alone. This was an important case even at the time, but i dont think anybody realized how transform atiff it would be and how much it would influence our law. Were sitting here today and 50 years later having the almost same conversation, okay, what does katz mean in this context . You know, what does reasonableness mean . Where do we look for reasonableness . Do we look for this objective test . Do we look to the framers . Do we look to what modern law says . The law of the state, the jurisdiction in which its happening . These are very much debates today at the court, i think, as they questions are playing out. As a moment well hair from Harvey Schneider today telling us about what he learned of the decision. But first lets hear from ron in new hampshire. Caller the uniting amendment. Com, privacy is one of the things we struggle with, trying to figure out. We made quite a bit of progress. Privacy is an instinct, something that evolved through nature. What it comes down to is not places or people, but information. If you think of it in terms of information, its a lot easier to get your hands around. The Fourth Amendment mentions paper. At that moment, paper was the only way information could be stored. If the justices think of it that way, in terms of paper as information, then i think it would be easier for them to extrapolate what the right really means. The problem is when when that instinct is manifest in a culture the way it man teifests varies from culture to culture. Im going to add one more related comment. This is a tweet from wild and wolf. So what would you say . Theyre both importance comments. And there are certainly natural rights from god and nature, not from government, and those include a kind of cognitive liberty, privacy of our thoughts. We know that because of the great battles of the revolution were fought overed right to make anonymous pamphlets. Then papers where people reported thoughts and diaries, that has to be translated into a digital aid. Its interesting that your crowdsourcing effort is trying to make that clear. I ask opportunities how would you make it clear to digital technology. Obvious people will suggest adding the word digital. If it clearly said right to be secure in our digital effects, then our cell phone reports, our g geolocation would be just as protected. It wasnt like wiretapping was unknown. Its the modern analog to eavesdropping. If they had meant to protect against eavesdropping, but they didnt say that. They said, you know, persons, house houses, papers and effects. So they didnt mean to. So this very much that question of do you look at just the words . Are you trying to look at what they were trying to protect as an intellectual matter, right . Was it about protecting whats in your brain and the way you translate it on to a piece of paper or the things you carry around with you. There were debates in that era and there are debates in the modern era of the court. Do you solve that by say the modern verse of paper is an iphone . And thats your solution, or do you come up with a different theory of the world. Lets hear from Harvey Schneider, charles katzs lawyer, upon hearing of the decision. I think the decision was december, so there was about between october and december thats two, three months, and you just wait. Then you get in the mail, you get a the decision from the court which 71, we won. It was exhilarating. The very next case that i had when i returned from arguing before the Supreme Court was representing a guy on a traffic ticket in englewood, california. Thats going from the heights to the depths. How human is that clips . In the mcgeorge law review many years later, mr. Schneider alsoed a post script. When burton marks informed him of the decision, his First Response was not one of thanks or gratitude. Rather, he wanted to know if he could sue the Telephone Company for permitting the fbi agent too put one telephone booth out of order, and so it goes, he writes. Were going to spend or last 15 minutes talking about the consequences of katz and its long tale. Weve done a lot of that already. But lets listen to jimmy. Youre on the air. Go ahead, please. Caller yes, im glad he did increase the amount of freedom we have with this decision, but one thing they did not mention was the right to gamble. Has there ever been a case that says, hey, that law should have been unconstitutional because people have the right to gamble . Thank you. Thats very interesting. Under the Old State Police powers jurisprudence, you could ban things against public morals, ranging from gambling to cock fighting. But Justice Kennedys it decisions recognizing a right of autonomy, a right to define your own conception of the mystery of human life could theoretically be extended to the right of gamble. However, i think im confident in say the court has not extended the right of all ton muss to the right to gamble. Charles katz basically never heard from again, hes faded into history. But in fact, society reacted to it. I want to talk a bit about that. Heres a New York Times story in december 20th, 1967 new tack in bugging. Supreme courts ruling may produce state laws allowing eavesdropping. How did states respond and how did Congress Respond to this ruling . Well, Congress Passed title iii, the omnibus crime and control act in 1968, which provided a procedure for wiretaps. They created a said of predicate acts for which the wiretaps could be utilized. That law has modified over time, but congress legalized wiretaps. It remains the law today. Its been expanded and modified to give you access to different types of data, including 1986 amendments to address electronics communication, additional protections some would say inappropriately low protections today for Electronics Community indications, a big debate about whether akma, as its called, needs to be updated for the modern era. And obviously the laws we now see being applied today in the cell phone cases and in the metadata cases, which permit access to noncontact less soons with less than a warrants. There is a big debate in the policy space, as well as before the courts, whether that is an appropriate standard, or whether a warrant ought to be required for some of necessary noncontact records, whether its about your location, and it can track you for weeks and days and months on ends. Weve been talking about some of the locations that came out. Here are a few of the key ones. In 1972, the Nixon Administration challenged the omnibus crime bill with a case called u. S. Versus district court, and in 2001. Kyllo versus u. S. , u. S. Very jones on the gps tracking device, and you both represented carpenter versus u. S. , which will be decided later this year on the tracking of cell phone positions with the towers. So what is important to know . Each is an attempt to translated lessons of katz. So the keith case says there could be a National Security exception for the Fourth Amendment. If theres a real threat to National Security, then maybe you could have lower standards, but generally you do need a warrant to get records. The kyllo case involved thermal imaging that could measure heat on the outside of a house. Justice scalia said it was protected, because the technology could reveal intimate details inside the house, like the hour of the lady of the house was taking her daily sauna or bath. There are trespasses involved, because police walk onto the driveway and seize the car. The reason why the carpenter case could be the most important of this century, it involves the question, when we walk down the streets with our cell phones, we emitting geolocation records, and they tracked this guy for 127 days, five months. Do we have an expectation of privacy in the records we have emitted. The government says, no, we voluntarily surrendered them to the phone company, but at the oral argument, as we discussed earlier, justice gore suffolk cussed on the property interesting, and justice sotomay sotomayor, that the government will not be tracking us no five months and see the people we associate with and the rallies we attend. Its an opportunity for the court to do what it did in katz, to translate the amendment with a theory that is based not in existing case law, but requires them to take an additional step. They may do so for different reasons, but its exciting to see justices on both sides converging around that protection. Would you add others to that . I think keith is an particular case. Its named keith, because it involved a petition an mandamus pet tigsz to the court to require a judge to do something. It was the surveillance of a man who was trying to blow up the local cia office in an arbor up mosh gan its only known for the footnote, which says we assume that in the cases of National Security, you dont need a warrant. Every court has since held. No National Security, you dont need a warrant. This is an interesting done trick. This has developed the entire cases, the foreign intelligence superstructure is built on the idea you dont need a Fourth Amendment warrant. You may need something klee to it, but not a Fourth Amendment warrant. Christine is watching us in somerset, new jersey. Hi, christine. Caller hello. My question is about expectation of privacy, and whether the bar will be lowered as the younger people have less of an expectation than we do. I was born in the middle of the baby boom in 55. I talked to my niece about privacy. My expectations are very high. She laughs at me and says, look, get over it, theres no such thing as privacy. So if people in their 30s and then younger feel theres no expectation of privacy, then where does the bar stand for whats reasonable . Thank you. Its a crucial question, and as you suggest, if you have a test which is based on subjective expectations, if privacy expectations go down, so do the protections. Its not true that younger people have no expectations. Dana boyd, the privacy researcher has donesh but that millennials have different expectations, and they may be more willing to reveal themselves on facebook, but not so willing to be searched at the border, for example. But the facebook hearings are tomorrow and were having a national conversation, the biggest one i have ever seen, about privacy and whether we trust private companies to manage data and to share it and to allow that to be governedly user agreements. If the world is experiencing that we have no privacy on facebook, according to the katz doctrine, that would suggest the constitutional protections might be diminished as well. That reaffirmed justice sotomay sotomayors caution. Cad is not adequate for protecting privacy in the age of facebook. I think jeff is exactly right. The big question now is if theres some irreducible memo that has survived, even after you look at the objective use the society, and whether society as an objective matter, sort of the common law sets a baseline that states cannot deviate below, even if they were to permit types of surveillance based on the views of community at the time. This is an interesting debate that well see play out, and there is interesting stuff in the chicago law review. Steven is in connecticut. Caller i had a comment that you would advertise this landmark series more so that people could watch it and courts have a legitimate reason in making law, which apparently half the country does not understand. My question is quick there any agreement as to what is an objective evidentiary standard as to what society will accept as reasonable . Is it state law . Or Court Decisions . Public opinion policies . Otherwise then the standard becomes a subjective shiny story. Thats funny, Justice Stewart, who wrote the majority opinion in this case, of course, is also the one who, in jacobellis v oregon, said about important grae pornography, i know it when i see it. Accept other than what the court says at the time. We have seen the court, when it comes to the cruel and unusual punishment talk about what the states are doing, sort of taking a look at the states and even what foreign jurisdictions are doing, theres a lot of disagreement, but thats at least one way the courts try to interpret certain aspects of what they think society thinking of terms of the constitution, when theyre trying to apply them to the modern era. Again, hotly debated on whether thats an appropriately methodology, but jeff, what do you think . Youre absolutely right, and the lack of precise standards does make it like a shaggy dog. In the eighth amendment, the court may look to state constitutions or state laws, but technology is moving so fast that states have not passed laws regulating, for example, geolocation privacy. Theres a law in congress about this, but its not passed yet. This make this whole enter price amorphous, and justice a lito has said look to state trespass rules to identify something object tiff. This is what justice black was upset about. To give him his due, there was something mushy, shaggy todaylike about this reasonableness standard. Historic at question from twitter do you think anything from his writings . We know he was very upset about hi role he expressed regret for his role. However, he was not soft on crime. He sided with Law Enforcement frequently. He did not view this case as one that would thwart Law Enforcement. So i think the question is though he was regretful about his role in the jan niece internment cases, it did not change his view here. Caller i was wondering how the decisions may apply to nongovernment entities during the surveillance. Youre asking it on an important week, as we noted. Tomorrow and wednesday as youre watching this live, Mark Zuckerberg before Congress Asking lots of questions about privacy. Of course, the challenge is, a lot of us use gmail, facebook, twitter, you name it. We voluntarily give to these companies or data, and a lot of access. I dont know about you but when im back a few years ago when i was on gmail if i looked at an email about the bahamas, i would get an ad. They may not have been reading my email, about you theyre identifying words, pushing ads on that basis. So the question is, what does that do to your reasonable expectations of privacy, at least as against google . Do you have one . You have a user agreement. You have agreed theyre giving you this free agent that you really want, and facebook is giving you access to all your friends. You know what theyre doing. Youre not paying a penny, and the trade is youre giving all that information. Maybe you dont want it to be sent to cambridge analytics, but youve agreed. Does congress intervene . Does the ftc regulate . These are the debates were having. As jeff points out, laws are hard to change, and technology is changing so fast. So its a big debate. As you talked about, this is evolving on so many different tracts. We have increased threats to this nation, foreign and domestic. Technology is moving at the speed of light, and devices are coming in that we could not have imagined even two years ago. We know that katz will serve to translate the protections of the amendment. As jamil said, the amendment says Congress Shall make no law, not Mark Zuckerberg. Its not enough to say that simply because we sign a user agreement,ings then we have no privacy. I think the congress, citizens, regulators, but ultimately we the people have to be creative as the justices were and as Harvey Schneider was. So thank you, judge schneider, for having challenged the court that led to these new and that is something we all have to do. Closing comments to you, the enduring nature of katz, what would you say . It certainly does influence every debate about the Fourth Amendment and about government surveillance. Its very much a live topic, both in our political bodies, in the legislature. Frankly between the legislative branch and executive branch, and at the court. So to the present day, will things change . Inevitably the court will take up more cases. Will katz be forgotten . I highly doubt it. Were about halfway through our series. If youve been watching with us, in each practical weve said thank you to the National Constitutional center. Took is my opportunity to do that with the president sitting right here. So thanks to you and your team for all the help you have given you. Thank you for the wonderful collaboration and educating americans about the constitution. Thats it for tonight. Thank you for being with us. Tonight on American History tv, our series landmark cases continues, produced in the cooperation with the National Constitution center. We begin at 8 00 p. M. Eastern, which established that students do not lose their First Amendment rights on school grounds. At 9 35, New York Times versus United States, which restricted the governments power over the press and broadened protections. Watch tonight on cspan3, and anytime on cspan. Org. During the summer months, reach out to your electioned officials with cspans congressional directory. Order your copy on line today